Chattanooga Iron & Coal Corp. v. Shaw , 1924 Ga. LEXIS 267 ( 1924 )

'Hines, J.

(After stating the foregoing facts.)

As a verdict was rendered in favor of the plaintiffs, and as the defendant moved for a new trial on the ground that the verdict was contrary to the evidence, we will not consider the refusal of the judge to grant a nonsuit; but we will deal with the questions raised by the motion for a nonsuit in disposing of the grounds of the'motion for new trial.

In order for the plaintiffs to recover, it was necessary for them to show that they owned the iron ore in the lands in suit. Plaintiffs derived title to this ore through the will of H. S. Chamberlain Sr., who resided at the time of his death in the State of Tennessee, and who died leaving a will which disposed of the mineral interests in these lands. The will was duly probated in the county court of Hamilton County, Tennessee, on March 22, 1916. It was never probated in this State. It was executed and witnessed according to the laws of this State. The plaintiffs offered in evidence a copy of the will and an exemplification of the record admitting it to probate in Tennessee, certified according to- the act of Congress. The will and the record probating it had been filed and recorded in the office of the clerk of the superior court of Walker County on February 28, 1922.' To the introduction of the copy of the will and exemplification of the record probating it in Tennessee the defendant objected on the grounds, (1) that no letters testamentary accompanied the record; and (2) that the will had not' been probated in this State. The court overruled these objections and admitted said evidence.

Was the probate of this will in this State necessary to- constitute it a muniment of title on which plaintiffs could rely in making out their case? In Doe v. Roe, 31 Ga. 593, this court held that an exemplified copy, certified according to the act of Congress, of a testamentary paper executed, published, probated and recorded as a will in another State, may be a good muniment of title to lands in this State, even though the will was neither probated nor recorded in this State. In Kerr v. White, 52 Ga. 362, this court said: “An executor to a will made and probated in Tennessee may assent to a devise of real estate situated in this State, without probate of the will here.” It was further said: “If Mr. Kerr might own real estate here, he might convey it or devise it to Mr. White, in fee or in trust, provided he did it according to the laws of this State. That the deed or will has a trust attached does not alter the matter. Was the title complete to Mr. White according to the laws of Georgia? The law of Tennessee has nothing to do with it; they could not make it good if it was bad — they cannot make it bad if it be good. If, by our law, White takes without conditions, the law of Tennessee cannot impose a condition. The land passes according to our law, and this is the necessary incident to the sovereignty of the State over the land within its borders. The question therefore is whether, under our law, Mr. White is, under the will of Mr. Kerr, entitled to the title and possession of the land referred to; and that depends, as we have said, entirely on our law. To make out the case it is to be shown that the will is executed according to the laws of Georgia. This is admitted. Its probate in Tennessee makes it a good muniment of title in this State, under the constitution of the United States, providing for full faith to the judgments of the judicial proceedings of other States: 31 Georgia, 600.” It will thus be seen that this court cited Doe v. Roe, supra, as an authority for its holding. In Chidsey v. Brookes, 130 Ga. 218 (60 S. E. 529, 14 Ann. Cas. 975), the ruling in Doe v. Roe was formally overruled by this court. In so doing this court did not refer to the case of Kerr v. White, which followed said ruling in Doe v. Roe; but as Kerr v. White was based on Doe v. Roe, the effect of overruling the principle announced in the older ease would probably have the effect of overruling the principle announced in the latter case. It would seem that removing the foundation of the latter case would have the effect of destroying the superstructure built thereon. It is not necessary however, for us to decide this question.

The case of Chidsey v. Brookes was decided on February 26, 1908. Titles to lands in this State had been acquired on the faith of rulings in 31 and 52 Georgia Reports. The effect of the ruling in Chidsey v. Brookes was to unsettle such titles. For this reason the legislature passed the act approved August 17, 1908, entitled “An act to quiet the title to real estate in Georgia held under foreign wills, and to make such wills muniments of title in certain cases, and for other purposes.” This act is now codified in the Code of 1910, §§ 3881, 3882. Section 3881 makes wills executed in another State and witnessed according to the laws of Georgia, when probated in another State, “muniments of title for the transfer and conveyance of real property in this State to the distributees or devisees mentioned in such wills, and the same shall be admitted in evidence in this State as such muniment of title, without being probated in this State, when accompanied by an exemplification of the record admitting the will to probate in another State, certified according to the act of Congress,” when such wills are recorded in the deed books in the offices of the’clerks of the superior courts of the counties in which the lands are situated. The provisions of this section are plain. Under these provisions devisees to whom lands are devised under foreign wills acquire title to such lands, when assented to by the executors of such wills, without their probate in this State; and copies of such wills, when witnessed according to the laws of this State and accompanied by an exemplification of the record probating such wills, certified according to the act of Congress and duly recorded, are muniments of title to the lands so devised.

But can executors of a foreign will which has not been probated in this State sell and convey lands of the testator located in this State ? This depends upon the proper construction of section 3882 of the Civil Code of 1910. This section is in part as follows: “The preceding section shall apply to all cases where real estate is held or claimed under foreign wills, and to all suits which shall be brought to recover or protect real property in this State.” This section is of broader purpose and wider intent than the preceding section. It makes the preceding section applicable to all cases where real estate is held under foreign-wills, and to all suits which shall be brought to recover or to protect lands in this State. To hold that the cases referred to in section 3882 are the cases mentioned in section 3881 would place too strict and narrow a construction upon these sections. Such a cramped construction of the act of 1908 would render the second section of that act, now embraced in section 3882, superfluous and unnecessary; and we should not adopt a construction which would place the legislature in the position of enacting unnecessary and superfluous provisions. The better construction of the last section cited is that it applies to all cases where real estate is held or claimed under foreign wills, whether such claimants are devisees or distributees under such wills or are other claimants thereunder; and that the suits therein referred to are not only suits brought by such devisees or distributees to recover or protect lands in this State devised to them in such wills, but also suits brought by others, such as purchasers from the executors under such wills, to recover or protect lands in this State so purchased. So we are of the opinion that purchasers of lands under foreign wills, when sold by executors empowered by such instruments to sell them and when such lands are sold in the proper manner, acquire title thereto, although such wills had not been probated in this State.

The plaintiffs introduced in evidence, as one of their muniments of title, a deed from the executors of EL S. Chamberlain Sr., deceased, to W. C. Evitt, dated October 24, 1917, which conveyed the premises in dispute, for the alleged consideration of $100. This conveyance was in the form of a warranty deed, and recited that it was made between “Morrow Chamberlain and H. S. Chamberlain Jr., executors of the estate of H. S. Chamberlain, deceased, parties of the first part, and W. C. Evitt, party of the second part.” This instrument did not recite that the executors conveyed this property as a part of the estate of EL S-. Chamberlain, the deceased, nor that the sale was at public outcry after due advertisement. Plaintiffs submitted no proof that this property was advertised and sold by the executors at public outcry. The defendant insists that the sale by the executors was a private one, and that for this reason no title passed under this conveyance to the grantee therein. Was this a private sale by the executors of these lands or the mineral interests therein; and if so, was the sale invalid ?

Where the deed of executors makes no reference to the power of sale in the will under which they are selling, contains no recital as to any public sale or the manner of the sale, but purports to be a mere conveyance of the property to the grantee therein, and there is no aliunde proof of a public sale, the sale will be deemed and held to have been a private sale. Sapp v. Cline, 131 Ca. 433 (62 S. E. 529). So as this deed from the executors to Evitt contains no recital as to any public sale or the manner of the sale, and seems to be a mere conveyance of the property to the grantee therein, and as there is no aliunde proof that the sale was public, we hold that this sale was a private one. The testator devised the residuum of his estate to his executors in trust for certain purposes. We assume, as it is so treated by the parties, although this fact does not clearly appear from the record, that this residuum embraced the property in dispute. The will contains this provision: “The said executors shall have power to sell any or all of the property of said trust estate, and to reinvest the proceeds of any such sale, in such other safe and suitable form as shall seem best to them.” Did this power authorize the executors to make a private sale of the property in dispute? It does not expressly authorize a private sale. Does it do so by necessary implication ? In Mattox v. Eberhart, 38 Ga. 581, the testator directed that all his property be kept together during the widowhood of his wife for the support and maintenance of his wife and minor children, and that his executors give to each of his sons as they became of age, and to each of his daughters as they became of age or married, certain amounts in money or property, as might be most convenient to the estate and most suitable to the child receiving the property; “and in order to enable my executors more conveniently to carry out all the foregoing objects of this item, I hereby give them power to sell any of my property and to buy or to exchange for other property, taking care to give a full statement and history of all such sales, purchases and exchanges in their return to the court of ordinary. ” Under this power this court held that the executors were authorized to sell at a private sale. In Anderson v. Holland, 83 Ga. 330 (9 S. E. 670), this court said: “It seems to us that the will does not fail to specify the mode of sale, but by necessary implication authorizes a private sale. It describes the land as owned in partnership, and gives authority to exercise discretion by selling the testator’s half, or buying the other half, or by dividing the lot or selling it altogether. The selling was to be done, we think, in the same mode as the buying or the dividing ; and certainly these were not contemplated to be done at public outcry or with any preliminary in the nature of advertisement.” Under the will in the instant case, the testator devises the residuum of his estate in trust to his executors for the purpose of preserving it, for collecting the income, interest, dividends, and profits therefrom for a period of five years from the date of the probate of the will, and applying the same as therein directed. He then provides that his executors “shall have power to sell any or all of the property of said trust estate, and to reinvest the proceeds of any such sale, in such other safe and suitable form as shall seem best to them.” The discretion vested in his executors under this provision is not to be construed as applying solely to the reinvestment of the proceeds of the sale of any of the property, but should be held to apply to the method of sale as well. The method of sale, as well as the manner of reinvestment, is a matter left to the discretion of his executors. This being so, we are of the opinion that the intention of the testator was to authorize his executors to sell at private sale any of the property mentioned; and, as we have seen above, this property embraced the property in dispute.

This being so, was the sale of the property in dispute invalid and void ? Prior to the adoption of the Code, the executor had the right to sell the lands of the testator at private sale when the will authorized a sale without prescribing how it should be made. Bond v. Zeigler, 1 Ga. 324 (44 Am. D. 656); Mattox v. Eberhart, supra; Smith v. Hulsey, 62 Ga. 341; Thurmond v. Faith, 69 Ga. 832. Since adoption of the Code, the executor cannot sell lands of his testator at private sale unless authorized so to do, either expressly or by necessary implication. Sapp v. Cline, supra; Civil Code (1910), § 4036. This section expressly declares that “the executor . . must comply with the requisitions before specified.” These “requisitions” refer to advertising the sale and making a public sale. Anderson v. Holland, and Sapp v. Cline, supra. Thus a private sale by an executor, when unauthorized by the will, is invalid and void; and a deed made in pursuance of such sale, when offered in evidence to establish title, can be attacked by the party against whom such title is sought to be asserted. But, as we have seen, the will by necessary implication authorized a private sale; and this being so, the sale by the executors under this power of sale, and their deed in pursuance thereof, vested the title to the property in dispute in the grantee in this deed.

But it is insisted that the sale by the executors of this property was void, for the reason that at the time of the sale it was held adversely to the estate of testator. Conceding that this property was so held, we do not think that this position is tenable. The general rule is that a deed to lands made while the same are held adversely to the maker of the deed is not void. Civil Code, § 4185. An exception to this rule is that an administrator cannot sell land held adversely to the estate by a third person, but must first recover possession. Civil Code (1910), § 4033; Hall v. Armor, 68 Ga. 449; Hanesley v. Bagley, 109 Ga. 346 (34 S. E. 584); Lowe v. Bivins, 112 Ga. 341 (37 S. E. 374); Downing Lumber Co. v. Medlin, 136 Ga. 665 (72 S. E. 22); Thrift v. Baker, 144 Ga. 508 (87 S. E. 676). A deed made by an administrator when the property is held adversely to the estate by a third person is void. Booth v. Young, 149 Ga. 276 (99 S. E. 886); Edwards v. Sands, 150 Ga. 11 (102 S. E. 426). It is insisted that these principles, which apply to sales by administrators, are equally applicable to sales by executors ; and that sales by executors of property held adversely to the estates which they represent are null and void. Does section 4033 apply to sales by executors ? Its terms do not embrace executors; but it is said that this section is made applicable to executors by section 3892, which provides, among other things, that “the mode of sale” by administrators shall apply to executors, and that “all other matters in their nature applicable to executors shall be held and taken to apply to and include executors, to the same extent as if they were named therein.” In view of this broad language, section 4033 may be applicable to sales by executors. Judge Powell, in his valuable boob, takes this view. Powell on Actions for Land, § 249. But we do not think that it is necessary, under the facts of this case, to decide this point. It has been held by this QCWt that section 4033 is not applicable to conveyances by executors to devisees of property given them in wills, as the purpose of this section was to prevent the sacrifice of property which would result if sold when held adversely to the estate. French v. Baker, 95 Ga. 715 (22 S. E. 652); Weeks v. Hosch L. Co., 133 Ga. 472 (66 S. E. 168, 134 Am. St. R. 213). As we have seen, the testator devised the property-in dispute to his executors in trust for certain purposes; and their conveyance of this property was made in pursuance of a power of sale given them touching this trust property. When they sold the same, they were evidently disposing of it, not as the property of the testator, but as property held by them under this trust. Their deed of conveyance, while executed by them as executors, was manifestly made under said trust and as trustees. So these executors did not sell this property as a part of the estate of their testator, but as a part of the property so devised to them in trust. We do not think that we should extend the provisions of section 4033 of the Code to sales by testamentary trustees, even where such trustees are the executors of the will creating the trust. This would be creating an exception to the general rule; and this can only be done by legislative authority.

The other assignments of error are without merit, and-do not require the grant of a new trial.

Judgment affirmed.

All the Justices concur.